By Chloé Berthélémy

From a fundamental rights perspective, it’s essential that the proposal enabling cross-border access to data for criminal proceedings (“e-evidence”) includes a notification mechanism. However, this requirement of a notification seems to be out of the question for those advocating for “efficiency” of cross-border criminal investigations, even if that means abandoning the most basic procedural safeguards that exist in the European judicial cooperation. Another argument against notifying at least one second authority is that the system would be “too complicated”.

To solve these intricacies, others (with similar goals in mind) have proposed to restrict the scope of the future legal instrument to “domestic” cases only. This means that the Production and Preservation Orders would only be used in cases where the person whose data is being sought is residing in the country of the issuing authority. For example, if a French prosecutor is investigating a case involving a French resident as a suspect, she would not need to request the approval of another State. Only the executing State – where the online service provider is established – would be required to intervene exclusively in cases where the provider refuses to execute the Order.

“Domestic” cross-border cases?

Traditionally, EU Member States execute their own national laws to summon service providers established on their territory to hand over their customers’ data for criminal matters. However, when the evidence that is being searched for is located in another Member State, European Union’s rules for judicial cooperation kick in. The new regime, as proposed by the EU Commission, allows Member States to extend their judicial jurisdiction beyond their territorial boundaries. This affects the sovereignty of other states – and this is why we talk about cross-border access to data and cannot refer to “purely domestic cases”.

The notification of a second authority, notably the executing authority, is essential for the new instrument to be compatible with EU primary (the EU treaties) and secondary law. For the principle of mutual recognition – which is the legal basis chosen for the proposal – to apply, it is indeed crucial that the executing State is first aware that an order is executed on its territory, before it is able to recognise it.

Notification to the executing authority

Some stakeholders in the e-evidence debate grumble about the administrative burden that a notification procedure would entail. They further underline the problematic situation it would create for Irish judicial authorities since Ireland hosts so many prevailing service providers. However, there are several counter-arguments to these claims:

  1. The proposal does not solely cover circumstances in which Ireland will be involved but all cross-border cases in the EU;
  2. It is vital to design policies that are future-proof. The current lack of European harmonisation in the field of taxation policies impacts the efficiency of judicial cooperation instruments. This doesn’t, however, mean it will always be that way. It is also not a satisfactory justification for bypassing fundamental rights safeguards;
  3. Service providers should not be required to execute orders that are unlawful under the law of the country where they are located;
  4. In cases where the affected person’s residence is unknown, a notification mechanism to access identifying information would be imperative, because there would be no indication at this stage of the investigation as to whether there is a third State concerned or not.

There are cases in which the affected person is residing somewhere else than in the issuing State. Excluding these cases from the e-evidence proposal’s scope would allow a relief for law enforcement authorities from a couple of additional legal checks – that would allow them, in particular, to avoid the verification of immunities or other specific protections that are granted by national laws, and that restrict the access to certain categories of personal data. Nonetheless, excluding those cases would not suffice to meet the obligation to respect fundamental rights and rule of law standards provided in the EU legal system when using mutual recognition instruments. Instead, a notification mechanism with an obligation to confirm or refuse the order for both the executing and the affected States should feature in the final text.

Double legality check in e-evidence: Bye bye “direct data requests” (12.02.2020)
https://edri.org/double-legality-check-in-e-evidence-bye-bye-direct-data-requests/

“E-evidence”: Repairing the unrepairable (14.11.2019)
https://edri.org/e-evidence-repairing-the-unrepairable/

Independent study reveals the pitfalls of “e-evidence” proposals (10.10.2018)
https://edri.org/independent-study-reveals-the-pitfalls-of-e-evidence-proposals/

EU “e-evidence” proposals turn service providers into judicial authorities (17.04.2018)
https://edri.org/eu-e-evidence-proposals-turn-service-providers-into-judicial-authorities/

(Contribution by Chloé Berthélémy, EDRi)